BY MIKE MAGEE
As the saying goes, “History repeats!” This is especially true where politics are involved.
Consider for example the past three decades in health care. It is striking how many of the players in our nation’s health policy drama remain front and center. And that includes President Biden who recently commented on the 12th anniversary of the passage of the Affordable Care Act (Obamacare):
“The ACA delivered quality, affordable health coverage to more than 30 million Americans — giving families the freedom and confidence to pursue their dreams without the fear that one accident or illness would bankrupt them. This law is the reason we have protections for pre-existing conditions in America. It is why women can no longer be charged more simply because they are women. It reduced prescription drug costs for nearly 12 million seniors. It allows millions of Americans to get free preventive screenings, so they can catch cancer or heart disease early — saving countless lives. And it is the reason why parents can keep children on their insurance plans until they turn 26.”
The seeds for the ACA were planted when President Clinton assumed office, and put his wife Hillary Rodham Clinton, in charge of creating a complex government driven plan. Efforts to find a complex middle ground showed promise but ultimately failed. Seeing an opening, conservative Republicans declared in 1994 that it was “Dead on Arrival’ – and it was. Though there were some incremental expansions of coverage for vulnerable populations, like the Children’s Health Insurance Plan (CHIP) guided thru the Senate by Senator Ted Kennedy as part of the 1997 Balanced Budget Act, the first signs of significant innovation and progress came from Kennedy’s home state of Massachusetts.
Leading the charge was the state’s Mormon, uber-capitalist, Republican Mitt Romney. With an eye toward a Presidential run, that would come six years later, he adopted the Heritage Foundation plan, complete with an “individual mandate”, and worked with the state’s democratic legislature to enact the law in 2006. The mandate was get insured or pay the greater of $695 per adult and $347.50 per child per year or 2.5% of household income annually to the state.
When Barack Obama assumed the Presidency in 2008, the annual per capita health bill in the U.S. had reached nearly $8000 per year, twice the amount of any comparator developed nation in the world. Coming in, President Obama knew health care would be his signature legislation, and that he’d pay a steep price for it.
From the outset, three things were clear. First, a second run of the famous “Harry and Louise” ads that collapsed the Clinton health care effort in 1992 had to be headed off. So Obama met with each of the four health sectors – the AMA, the American Hospital Association (AHA), PhRMA, and the insurers – and made significant early concessions. No Medicare price negotiations or importation from Canada for PhRMA; lucrative Medicare Advantage plans for insurers; protected non-profit status and continued subsidies for hospitals for medical education and serving the underserved; and no changes in reimbursement for doctors.
Second, the template for what became the Affordable Care Act would be the Massachusetts universal health care initiative, a product of a Republican think tank and a Republican governor. Third, Republican Majority Leader Mitch McConnell would do everything within his power to block and destroy the legislation since he had already pledged that his single objective as Leader was to assure that Obama would be a single term President.
On March 23, 2010, President Obama signed the Affordable Care Act into law initiating a decade long war with Republicans on two fronts. First, in Congress, Republicans voted to repeal the law more than 60 times, all unsuccessfully. The most dramatic attempt came on July 28, 2017 when John McCain teamed up with fellow Republicans Lisa Murkowski and Susan Collins, and managed to appear in the chamber near death from brain cancer to provide a camera ready “thumbs down” to the Trump/McConnell effort.
Over this same decade, Republican-led states in parallel had attacked the law on Constitutional terms, chipping away at the statutes, without offering an alternative. Opponents termed the act “Obamacare” as if it were a pejorative label. The President turned that on his critics stating, “I have no problem with people saying Obama cares. I do care.”
“Repeal and Replace” became the rallying call of Republicans. They didn’t succeed. But numerous challenges to the constitutionality of the legislation continue to this day.
In 2012, 26 Republican led states Attorney Generals joined in a suit to challenge the individual mandate which worked its way up to the Supreme Court. This was a component of the Massachusetts law designed to insure that all citizens and organizations would participate and contribute to even risk-sharing essential for insurance viability. Romney had tried to remove the clause from the Massachusetts bill but his veto was overridden by the Massachusetts legislature. In the federal bill the mandate was the “stick” to counterbalance the various “carrots” of premium subsidies.
The argument against the ACA mandate became the landmark case – National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The argument for repeal of the mandate was based on the fact that the administration had justified the mandate as constitutional based on the Article 1 Section 8 Commerce Clause or Necessary and Proper Clause. On June 28, 2012, Chief Justice Roberts disappointed fellow Republicans with a complex decision that split the difference.
As he stated in his closing: “The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.”
Roberts did support Republicans on a separate issue. The ACA had mandated that all states expand eligibility to Medicaid and agreed to subsidize 90% of the added expense. Republican states challenged the right of the federal government to impose those changes.
The Court’s ruling stated, “As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding. Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.”
President Obama and Vice President Biden declared victory, praising the decision, and House Speaker Nancy Pelosi remembered the lifelong campaign of Ted Kennedy, who had died of brain cancer 10 months earlier, stating that he could now “rest.” Despite Republican pledges to fight on, as the New York Times wrote that day this ruling “may secure Obama’s place in history.”
President Biden echoed this sentiment recently stating, “When I ran for President, I promised I would protect and build on Obamacare — and that’s exactly what my Administration has done. Thanks to the American Rescue Plan, ACA premiums are at an all-time low, while enrollment is at an all-time high…We’ve made tremendous progress, but our work is far from over.”
Mike Magee MD is a Medical Historian and the author of “CODE BLUE: Inside the Medical-Industrial Complex.”